THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON SEPTEMBER 21, 1995 ___________________________________________________ DENIED: August 31, 1995 ___________________________________________________ GSBCA 13315-P TELOS SYSTEMS INTEGRATION, A DIVISION OF TELOS CORPORATION, Protester, v. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, Respondent, and DUNN COMPUTER CORPORATION, Intervenor. Timothy Sullivan, Katherine S. Nucci, and Martin R. Fischer of Dykema Gossett PLLC, Washington, DC, counsel for Protester. Dinah Stevens, Roberta M. Echard, Linda Horowitz, and Jeffrey A. Hennemuth, Office of the General Counsel, Administrative Office of the United States Courts, Washington, DC, counsel for Respondent. Edward J. Tolchin of Fettman & Tolchin, Fairfax, VA, counsel for Intervenor. Before Board Judges PARKER, BORWICK, and DeGRAFF. BORWICK, Board Judge. Protester, Telos Systems Integration, a division of Telos Corporation (Telos), contests the award of an indefinite quanti- ty/indefinite delivery contract for microcomputers to Dunn Computer Corporation (Dunn) by respondent, Administrative Office of the United States Courts (AOUSC). The procurement is known as the Office Automation Recompetition (OAR). Telos alleges that Dunn submitted a vague and sloppy proposal, particularly regard- ing how it filled in its B-Tables, and identified user install- able components (UICs) such that AOUSC could not tell what products it would be getting from Dunn. We disagree; while Dunn made mistakes in some aspects of component identification, the remainder of its proposal is sufficiently specific to enable AOUSC to know what it is buying. Telos alleges that Dunn intentionally submitted a false Buy American Act certification in its best and final offer (BAFO). Dunn's BAFO Buy American Act certification was mistaken; we do not find fraudulent or intentionally deceptive conduct in this case. Correcting the mistake does not change the price ranking of offerors; Telos's offer remains higher than Dunn's. We thus conclude the error was de minimis and affords no ground for relief. Telos alleges that Dunn's high speed printer failed the mandatory requirement for 1,000 page paper tray support, making Dunn ineligible for award. We disagree. The printer is compli- ant with the requirement as stated. Telos alleges that AOUSC violated regulation in failing to advise Telos by solicitation amendment that it had relaxed requirements for the slow speed printer. It relaxed the requirements after it had issued a deficiency request questioning the acceptability of the printer Telos originally had proposed. We agree. However, substitution of the slow speed printer that Telos originally had proposed (the same printer that Dunn proposed) would not have changed the evaluation or selection decision. The violation is de minimis and, again, affords no ground for relief. Telos alleges that AOUSC mis-evaluated its proposal as to response time to calls for technical assistance under the techni- cal assistance factor of the management area. We disagree. The technical team correctly concluded that Telos offered **** **** ******** ****, not the response time of *** ***** that Telos said it offered. The technical team correctly read Telos's proposal as promising initial answering of a telephone call ****** *** *****. Telos alleges that AOUSC applied unstated evaluation factors in evaluating proposals. We disagree. The RFP stated all evaluation factors; when evaluating proposals, AOUSC used a benchmark scoring methodology in applying the stated factors, but use of a scoring methodology does not amount to the application of unstated factors. Finally, Telos alleges that the hands-on evaluation AOUSC performed on Dunn's system after submission of BAFOs but before award amounted to illegal post-BAFO discussions, or an intention to engage in illegal post-BAFO discussions. We disagree--no discussions were conducted. As Telos has not established that AOUSC violated statute or regulation in any material way that prejudiced Telos, we deny the protest. Findings of Fact General specifications 1. The contested procurement (known as the Office Automation Recompetition or OAR procurement) contemplates award of an indefinite quantity/indefinite delivery contract for microcomput- ers. Protest File, Exhibit 5 at I-7, I.4 and C-2, C-1. The contract term is from the date of award through September 30, 1996, with three one-year option periods; the contemplated contract may not exceed forty-eight months. Id. at F-3, F.1 and I-8, I.9. 2. The procurement began with the Integrated Technology Division (ITD) of AOUSC forwarding a functional requirements definition (FRD) document to the procurement staff. Protest File, Exhibit 1. The ITD contemplated three types of desktop microcomputers: slimline, desktop and tower. Id. at 7. ITD contemplated stringent minimum mandatory requirements for these computers. For example, the ITD suggested *** ** as the minimum cache for the microcomputers. Id. ITD desired * * *** ***** * * *** **** *** * ******* ****-****** ***** ** ********* ****- ****** for all three types of microcomputers. Id., Exhibit 7 at 9. 3. On March 29, 1994, AOUSC sent an agency procurement request to the General Services Administration (GSA), which, on April 25, 1994, issued a delegation of procurement authority (DPA) to the AOUSC for the conduct of the procurement. Protest File, Exhibits 4, 5. 4. The request for proposals (RFP), dated September 9, 1994, required vendors to propose three desktop systems (slimline, desktop and tower), each with ascending capabilities. That is, the second system proposed was required to have the capabilities of the first system proposed, as well as its own enhanced capa- bilities, and the third system proposed was required to have the capabilities of the second system, as well as its own enhanced capabilities. Protest File, Exhibit 5 at C-4, C-3A.(1). The fourth system required was a notebook system, which was required to run all the software outlined for the slimline system. Id. 5. The RFP designated each slimline, desktop, tower and notebook system as a contract line item number (CLIN), with sub CLINs being components of the CLINs. For example, CLIN 0100 was the slimline system, with sub CLINs being such items as the slimline system chassis (sub CLIN 0101 CA), motherboard (sub CLIN 0101 CB), and system RAM upgrade (sub CLIN 0101 CC). Protest File, Exhibit 5 at B-8 (amendment five). For the most part, the sub CLINs were designated as user installable components (UICs). Id. The successful awardee was to supply UICs to enable the AOUSC to add new components, upgrade each system configuration and perform self-maintenance. Id., Exhibit 5 at C-6. 6. To serve the printing requirements of AOUSC, offerors were to propose three types of printers: slow, medium and fast speed. Protest File, Exhibit 5 at B-3, B-36 (Table B-1, CLINs 0501, 0502 and 0503). The RFP designated each speed of printer as a separate CLIN, and each of the printers had sub CLINs which were designated UICs. Id. at B-12 (amendment five). General system specifications 7. The system specifications in Section C were performance specifications. All systems were required to be user-friendly, to execute applications while attached to a Novell Netware server, to be certified to run the most current versions of Microsoft DOS, Microsoft NT, Microsoft Windows, Wordperfect, Wordperfect for Windows, OS/2 and Solaris/386 UNIX. Protest File, Exhibit 5 at C-3, C-3A.(1). The slimline system is to be used for wordprocessing, networking, networking calendaring and scheduling, and computer-assisted legal research. To that end, processor and memory have to be sufficient to provide "respon- sive, concurrent operation of the software products outlined above." Id. at C-4, C-3A.(1)(a). 8. The desktop system has to perform the functions above and also perform "responsive, concurrent operations of moderately complex spreadsheets that may involve complex mathematical operations, CD-ROM (compact disk read only memory) based multime- dia applications with sound and full or partial screen graphics manipulation and data-base intensive software applications." Protest File, Exhibit 5 at C-4, C-3A.(1)(b). 9. The tower system has to perform the functions above, and has to be suitable for "use as a computer-assisted design work- station, as a multimedia development system, or as a large database system." Protest File, Exhibit 5 at C-4, C-3A.(1)(c). 10. The notebook system is to be capable of running all the software outlined for the slimline system; performance is to be comparable to that of the slimline system. Protest File, Exhibit 5 at C-4, C-3A.(1)(d). 11. Section C also described other requirements for non- system CLINs. For example, the printer requirements stated therein were that the slowest printer must print a minimum of four pages per minute, with the fastest printing a minimum of sixteen pages per minute. Protest File, Exhibit 5 at C-5. The proposed CD-ROM could not be less than double-speed. Id. at C-6. Solicitation provisions relating to model numbers/product de- scriptions and B-Tables 12. Paragraph B.2.1 provided in pertinent part: In the cost proposal, the Offeror is required to submit all basic price data in the formats shown in Tables B- 1, B-2 and B-3. . . . The model numbers shown in the price tables must be identical to the numbers shown in the configurations of equipment and software offered. All items offered must be listed in these unit price tables. . . . In addition to submission of Tables B-1, B-2, and B-3, the Offeror is required to indicate the Commercial List Price of each CLIN offered and the percent discount reflected in the unit price proposed. (Example: List Price: $100, Discount: 40%, CLIN unit price $60). A similar discount structure to that reflected in the selected offeror's cost proposal will be required for any additional and/or substitute equip- ment that is added to the contract for the life of the contract. This includes CLINs added/substituted under the Technology Refreshment, Engineering Change Propos- al, Substitution, or any other provision of the result- ing contract. B.2.1.1 Table B-1 Hardware Unit Price Schedule . . . . a. Column 1 - Contract Line Item Number (CLIN) b. Column 2 - Feature Model Number: The equip- ment component/feature model number. This is the same as the Contractor's ADP Schedule Price List or Commercial Price List number. c. Column 3 - Item Description: This contains the Contractor's title for the device(s) associated with each Contract Line Item Num- ber. d. Column 4 - Quantity: Estimated quantity for the respective year. e. Column 5 - Purchase Price. Enter the single component purchase price which applies. Prices should reflect quantity discounts if applicable. Protest File, Exhibit 5. 13. In amendment five to the RFP, the following note was added below the pricing tables: Each UIC must be available for the Government to order and each UIC must have a price associated with it. If a UIC is not separately priced, the Offeror shall so indicate by inserting "NSP" next to the item descrip- tion. The offeror shall also indicate where the "NSP" CLIN is bundled and that price shall be inserted in the "NSP" price column. For example, if the floppy drive controller (CLIN 0101 CN) is integrated into the mothe- rboard, the Offeror shall indicate the floppy drive controller (NSP) (Bundled in CLIN 0101 CB)[.] Since the floppy drive controller cannot be ordered separate- ly, the price entered for the floppy drive controller will be the price of the motherboard (CLIN 0101 CB) it is bundled with. Protest File, Exhibit 5 at B-8 (amendment five). 14. Section L provided instructions for preparation of proposals. In order to have an acceptable proposal, the offeror was: required to respond to each paragraph of Section C of the solicitation document, to include responses to the paragraphs therein, including any amendments thereto, and a paragraph acknowledging his or her ability to meet each of [the requirements]. A detailed statement of the offeror's ability to meet each of the require- ments and reference(s) which substantiate the claim must be provided. Protest File, Exhibit 5 at L-10, L.18.2.2.1. 15. For each numbered or lettered requirement, the offeror was to restate the entire requirement in bold typeface with its associated reference letter, provide a detailed statement of the ability of the offeror's proposed system to meet the requirement, and provide full references to technical documentation which substantiates the offeror's claim. Protest File, Exhibit 5 at L- 11, L.18.2.2.1. Offerors were to complete a specification matrix regarding the hardware and software characteristics of the proposed configurations. Id. at L-12, L.18.2.2.2. The speci- fication matrix for the system/chassis contained space for identification of a manufacturer, model, or version; the specifi- cation matrix for the slimline, desktop, tower, and notebook systems contained spaces for identification of manufacturer, model, and speed; the specification matrix for components (hard drive, IDE (internal drive electronics) controller, SCSI (small computer system interface) 2 controller, diskette drives, moni- tor, video system, keyboard, pointing device, printer, LAN NIC (local area network, network interface cards), back up storage device, modems, uninterruptible power supply, and CD-ROM drive) contained spaces for identification of manufacturer, model or version. Id. at 17-37. 16. The solicitation instructions for submission of cost proposals provided in pertinent part: L.18.3.1 Section 1- Unit Price Tables In this section of the proposal, the offeror is re- quired to submit a response to the Unit Price Tables contained in Section B of the solicitation document. These Unit Price Tables must contain all the costs pertinent to hardware, software and maintenance servic- es. Protest File, Exhibit 5 at L-15. General evaluation criteria 17. The evaluation criteria of the RFP provided: M.1 EVALUATION OF PROPOSALS This procurement is being conducted under source selec- tion procedures, and contract award will be made to that offeror whose proposal conforms to the solicita- tion document, and is determined to be most advanta- geous to the Government, price and other factors con- sidered. The source selection decision will be based on: a. The offeror's compliance with the mandatory technical requirements of this solicitation as specified in Section C. b. Those factors specified in M.5 upon which a ranking of proposals will be based in accor- dance with the relative order of importance accorded each factor. . . . . M.2 PRELIMINARY EVALUATION Proposals will be reviewed and screened to determine if they were prepared in accordance with the instructions contained in Section L of the solicitation and appear complete. Failure to provide all the required informa- tion/responses may result in a determination of un- acceptability, and the proposal not receiving any further consideration for award. M.3. MANDATORY REQUIREMENTS The Government will evaluate each offeror's technical proposal for compliance with the solicitation's manda- tory requirements on a pass/fail basis. To be consid- ered technically acceptable, a proposal must address and clearly indicate compliance with the requirements of Section C. Any offeror failing to pass/satisfy all of these mandatory requirements in Section C will be deemed technically non-responsive and will be dropped from further consideration for contract award. Protest File, Exhibit 5 at M-3. 18. The evaluation plan of the RFP specified three areas, technical, price and management, in descending order of impor- tance. Protest File, Exhibit 5 at M.4b. Although price was listed second, it was a significant criterion for award as part of an integrated assessment with the management and technical areas. AOUSC reserved the right to award a contract at other than lowest proposed price after consideration of all factors. Id. 19. There were twelve evaluation factors within the techni- cal area: (1) system performance, capacities and environment; (2) system; (3) keyboard; (4) pointing device; (5) printers; (6) LAN compatibility; (7) backup storage device; (8) modems; (9) unin- terruptible power supply; (10) CD-ROM; (11) EPA energy star compliance; and (12) notebook system. Protest File, Exhibit 5 at M-5, M.5. The factors for the technical area were of equal value and the subfactors within each factor were of equal value. Id. at M-5, at M-5A. 20. At the end of the system performance, capacities and environment factor is this statement: In addition, the government will evaluate all the user installable components (UICs) and system upgrades offered. Protest File, Exhibit 5 at M.5A.(a). 21. Section M of the RFP contained minimum mandatory re- quirements stated as negatives--i.e., AOUSC described those features of the proposed systems which would not meet the AOUSC's requirements. Protest File, Exhibit 5, M.5. With respect to the items specifically at issue in this protest, in the technical area the RFP stated as follows: (a) FACTOR: System Performance, Capacities and Environ- ment. . . . . (a.4) Subfactor: Cache The Government will evaluate each system's cache of- fered including: ability to defeat, wait state, minimum cache offered, and cache upgrades. THE FOLLOWING WILL NOT MEET THE GOVERNMENT'S REQUIRE- MENTS: - wait state greater than 3 - non upgradable cache . . . . (b) FACTOR: System . . . . (b.6) Subfactor: Diskette Drive Systems The Government will evaluate each system's diskette drives and controllers offered for number and type, formatted capacity, height, and mounting kits. THE FOLLOWING WILL NOT MEET THE GOVERNMENT'S REQUIRE- MENTS: - only one drive offered (5 1/4" or 3 1/2") . . . . (e) FACTOR: Printers The Government will evaluate each printer offered for type . . . tray types, capacities, and sizes, duplex capabilities, and interfaces compatibility types. THE FOLLOWING WILL NOT MEET THE GOVERNMENT'S REQUIRE- MENTS: . . . . Fast Speed Printer: - no envelope or legal feeder capability available. - doesn't have option of PostScript upgrade capability. - less than 1000 page paper tray support. - memory not user upgradable. - less than 16 ppm. Id., at M-6, M-9, M-11. 22. In the management area, the RFP specified a technical assistance factor which read in pertinent part: FACTOR: Technical Assistance The Government will evaluate the Offeror's proposed technical assistance for all hardware and software, to include method of contact, assistance coverage (week and day) initial call response[foot #] 1, ----------- FOOTNOTE BEGINS --------- [foot #] 1 AOUSC interprets "initial call response" as the time ** ***** *** * ********** ** ****** * **** ******* ********* (continued...) ----------- FOOTNOTE ENDS ----------- solution responsibility, manufacturer/third party referrals, and number of technical personnel provided for this effort. Protest File, Exhibit 5 at M-14. The RFP did not state minimum mandatory requirements for this factor. Id. 23. The evaluation criteria provided for color scoring of technical proposals. Blue was for "enhanced performance and/or service level that is of benefit to the Government." Green was for "satisfactory performance and/or service level which meets government's requirements." Yellow was for "performance and/or service level that is of reduced benefit to the Government." Red was for "performance and/or service level that will not meet the Government's requirements." Protest File, Exhibit 5 at M-4. 24. The intent of Sections C and M of the RFP was to make the statement of requirements as functional as possible so that vendors could make cost/technical trade-offs in developing their proposals, rather than be constrained by what the AOUSC procure- ment staff considered artificially high minimum mandatory re- quirements suggested by the ITD in the FRD. Transcript at 728- 30. Buy American Act provisions of RFP 25. The RFP incorporated the standard Buy American Act certificate found at FAR 52.225-1 (December 1989) and incorporat- ed by reference the clause at 52.225-3 (19- 94).[foot #] 2 Protest File, Exhibit 5 at K-17, K-18, I-3. The offeror was required to certify that each end product, except those listed, was a domestic end product. Id. at K-17, K- 18. Technical evaluation plan ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) ******** ****** **** *** **** ** ***** ** ****** *** ******** ****. Transcript at 802. [foot #] 2 That clause requires the contractor to deliver only domestic end products except under four specific circum- stances. The fourth circumstance relevant here is when the agency determines the cost of domestic end products to be unrea- sonable. 48 CFR 52.225-3(b)(4) (1994) (FAR 52.225-3(b)(4)). The offered price of a domestic item is unreasonable when the lowest acceptable domestic offer exceeds the lowest acceptable foreign offer by either more than six percent if the domestic offer is from a large business that is not a labor surplus area concern or more than twelve percent if the domestic offer is from a small business concern or any labor surplus area concern. FAR 25.105 (a)(1),(2). ----------- FOOTNOTE ENDS ----------- 26. Proposal evaluation was guided by a document entitled "Technical Team Evaluator Scorebook Procedures" hereinafter called the scorebook. Protest File, Exhibit 6. Under these procedures, the team made a preliminary evaluation of proposals, to ensure that each proposal met the RFP's Section L requirements for completeness. Non-compliance with Section L's instructions or obvious deficiencies in an offeror's proposal were to be documented and sent to the contracting officer for action. Id. at 7. Assuming a proposal survived the preliminary proposal evaluation, each proposal was to be subject to the technical evaluation. Id. Proposals would receive a yes/no pass-fail score regarding compliance with mandatory requirements. Id. at 8. 27. If a proposal met mandatory requirements, then the proposal would be evaluated against subjective requirements, i.e., those requirements that could not be answered by a yes/no or pass-fail response. Protest File, Exhibit 6 at 10. The evaluation criteria for the subjective requirements were to be rated as blue, green, yellow and red. A proposal meeting stan- dards which the AOUSC believed provided satisfactory performance would be rated green. Enhanced performance and/or service levels that would benefit AOUSC would be rated blue. Yellow indicated performance or service that was of reduced benefit to AOUSC. Red indicated performance that would not meet AOUSC's requirements. Id. at 10-11. This description tracked the evaluation methodolo- gy of the RFP. 28. The scorebook, cross-referencing sections C, L and M of the RFP, described the features which, if proposed, would earn a green in scoring for the applicable factor or subfactor. Protest File, Exhibit 6 at 11. Proposals offering features or service levels above a green would earn a blue in the proposal scoring; conversely, proposals offering features or service levels below those described in the scorebook would earn a yellow in the proposal scoring, for the applicable factor or subfactor. Id. The scorebook gave the example of the subfactor *** *****. Proposals offering *** ***** ** ******* **-** *** would earn a green; proposals offering *** ***** ******* **** ** *** would earn a blue. Conversely, proposals offering *** ***** **** **** ** *** would earn a yellow. Id. This scoring system was not stated in the RFP. Id., Exhibits 5, 6. 29. For the cache subfactor, a proposal would be evaluated green if the cache offered was *********** *** ******* ******* *** *** ** *** *** ******** *** * *** ********* ***** ******* **** *** ** *** ** *** *** *******. A system offering **** ***** would be scored blue, and a system offering **** **** *** ** ***** would be scored yellow. Protest File, Exhibit 6 at C-4. For the diskette drives subfactor, a proposal would be scored green if *** * *** **** *** *** * *** **** ******** ***** were provided. Id. at C-15. A proposal would be scored yellow for the applicable subfactor if less than that (i.e., *** ******** ****** ** *** **** ****) were provided. Id.; Transcript at 81.[foot #] 3 30. For the management area, in the technical assistance factor, a proposal which, among other things, stated that * ********** ***** ******* ** *** ******** **** ****** *** ******** ***** ******** *** ********** *** * ******** ** *** ******* ** **** would earn a green. Protest File, Exhibit 6 at C-35. At the hearing on the merits of this protest, a member of the evaluation team explained that the ******** **** ** *** ***** *** *** *** ******* ** *** ********* was the important criterion for evaluation. Transcript at 793-94. A proposal which promised * ******** **** ** **** **** *** ***** would earn a blue score for the factor. Protest File, Exhibit 6 at C-35; Transcript at 799- 800. Dunn's proposal 31. Guided by Section L of the RFP, Dunn submitted a narra- tive, showing compliance by paragraph number, Protest File, Exhibit 8 at II-2 to II-1-43; a mandatory features compliance list, id. at II-2-A1 to II-2-A31; and a specification matrix, id. at II-2-1 to II-2-25. Dunn also provided technical literature. Id., Exhibit 8. General system 32. Dunn buys equipment from suppliers and puts its own name on the equipment. Transcript at 596-97. For example, for the slimline system, Dunn offered the "Dunn/Intimidator/66," and identified the processor as a "486 DX2/66." Protest File, Exhibit 8 at II-2-2, B, Specification Matrix. For the desktop system, Dunn offered the "Dunn/Intimidator/100." Id. For the tower system, Dunn offered the "486 DX3 processor" running at 100 Mhz. Id. at II-2-2, B, Specification Matrix, and II-2-A18. These systems were custom manufactured for Dunn by the Interna- tional Business Machines Corporation (IBM). See generally, Protest File, Exhibit 8, Document 2. 33. In the B-Tables of its BAFO, Dunn made four mistakes in designating model numbers for CLINs. Three of the mistakes resulted from component changes, from the original proposal to the BAFO, which were not reflected in updated B-Tables: fast and medium speed printers, the seventeen inch monitors, and the NICs. Transcript at 590. Dunn also mis-stated the model number of the SCSI2 drive controller. Twice in its proposal, in the narrative and in the mandatory features compliance list which Dunn provid- ed, Dunn listed the TMC-1680 adapter as the applicable model SCSI2 controller. See Protest File, Exhibit 8 at II-1-17, II-2- ----------- FOOTNOTE BEGINS --------- [foot #] 3 A proposal offering just one diskette drive would have been evaluated as unacceptable, a red. Protest File, Exhibit 6 at C-15. ----------- FOOTNOTE ENDS ----------- A14. Dunn's B-Table lists the "TMC-1660" as the model number. Id. at Table B-1, Hardware Unit Price Schedule, Year 1 (emphasis supplied). 34. For some components Dunn used its own model number, rather than a model number used by Dunn's supplier. For example, Dunn called the hard drives it proposed for the slimline, desktop and tower systems the "IBM/420," "IBM/540" and "IBM/728" respec- tively. Protest File, Exhibit 8 at II-2-9. This nomenclature is similar to the system Dunn used in naming component models in its schedule contract.[foot #] 4 Intervenor's Hearing Exhibit 8. 35. Telos had its own discrepancies between model numbers in the B-Tables and its technical proposal. Telos did not specify a ***** ****** *** *** ******** ******** ******* ** ********* * ******** ************* Transcript at 388. *** ***** ****** ** *** ******** ****** ***** ********** ** *** *-****** *** *** ******** ** *** ********* ********** ********* ** ******* *** ******** *** ***** ******* Id. at 400-01. *** ***** ****** *** * *** ***** ********** ** *** ********* ********* ** *** ******** **** *** ***** *** ***** ****** ** ******* *-******* Protest File, Exhibit 9a at II-1-27; Transcript at 406-08. User installable components 36. Dunn's proposal listed prices for the UICs of I/O interface card ($1), power supply ($15), floppy drive controller ($1), IDE hard drive controller ($6), and local bus hard drive controller ($6). Protest File, Exhibit 8 at Table B-1. Dunn separately priced these components, because of the note, finding 13, which provided that if UICs were not separately priced and bundled with another component, the offeror should state the price of the bundled component. Transcript at 948-50. In fact, the floppy drive and hard drive controllers were simple slots or input/output latches integrated onto the motherboard of Dunn's systems. Id. at 888-90. Modern drives have controller compo- nents built into the body of the controller, eliminating the need for a separate controller card. Id. Dunn's technical proposal did not identify the separately purchasable UICs listed above. Id. at 614-19. Fast and medium speed printers 37. In its initial proposal, Dunn offered the Lexmark 4039- 16L plus as its fast speed printer and the Lexmark 4039-10R as the medium speed printer. Protest File, Exhibit 55 at II-1-25. Dunn described its fast speed printer as having "1100 sheet input capacity." Id. Dunn had included in its proposal technical literature describing tray linking. Document 17, included in its ----------- FOOTNOTE BEGINS --------- [foot #] 4 There, Dunn called its hard drives the "HD40" and "HD80". ----------- FOOTNOTE ENDS ----------- initial proposal, stated that "smart features like . . . automat- ic tray linking mean babysitting your printer is a thing of the past." Id. at Document 17 at 1 (unnumbered page).[foot #] 5 38. After the initial technical evaluation, the contracting officer issued a deficiency report, referencing page II-1-25 of Dunn's proposal, noting that the proposed printer (the model 4039-16L plus referenced on page II-1-26 of that proposal) did not meet the requirement for "1,000-page paper tray support." Protest File, Exhibit 15 at 4. The contracting officer testified that he issued the report because of the technical evaluation team's belief that the requirement for 1000 page paper tray support could only be met by the use of a single paper tray. Transcript at 53, 61. There is a dispute of fact as to why AOUSC issued the deficiency report. We find as fact that the deficien- cy report was issued because of the technical team's mistaken belief that the requirement for 1,000 page paper tray support could only be met by one tray. 39. Dunn responded that the model 4039-16L plus (emphasizing the plus) offered that support, and referenced Document 17 of the descriptive literature. Protest File, Exhibit 15 at 5. In the view of the technical team, the offeror's reliance on the mecha- nism of automatic tray linking satisfied the requirement for 1000 page paper tray support. Transcript at 88, 761. 40. Before the date for best and final offers (BAFOs) in this procurement, Lexmark had taken the 4039-16L plus out of production and replaced that printer with the Lexmark Optra Lx.[foot #] 6 The last date Lexmark accepted orders for the 4039-16L plus was December 31, 1994. Intervenor's Hearing Exhibit 5. 41. In its BAFO, Dunn offered the Lexmark Optra Lx, which was referenced in the mandatory features compliance list of its BAFO. Protest File, Exhibits 8 at II-2-A29 to A30, 36 at 2. Dunn there stated that the proposed Optra Lx could accommodate 1100 pages of paper tray capacity, with multiple tray options. ----------- FOOTNOTE BEGINS --------- [foot #] 5 Telos offered *** **** ******* with technical literature describing tray linking. Protest File, Exhibit 9a at II-1-25 to 26; Protester's Hearing Exhibit 4. In response to the same deficiency report, Protest File, Exhibit 14 at 7 (hand- written number), Telos explained the mechanism of tray-linking, id., Exhibit 9a at T-10693. ___ [foot #] 6 The Optra Lx is the successor model to the 4039- 16L plus; the Optra Lx has the same speed as the 4039-16L plus-- 16 pages per minute--but has higher resolution and a faster processor within the printer. Transcript at 645. ----------- FOOTNOTE ENDS ----------- Id., Exhibit 8 at II-2-A29 to A30. The proposal referenced Document 17, which mentioned "smart features like . . . automatic tray linking." Id., Exhibit 8 at Document 17 at 1 (unnumbered page). Dunn interpreted the requirement of 1000 page paper tray "support" as not requiring that the second tray be included in the price, but that the printer had to have the capability of handling 1000 pages. Transcript at 625-27. Dunn, therefore, offered the second paper tray as a UIC and did not include the second paper tray in the price of the printer. Id. at 712. If the AOUSC requires the optional second tray for the fast speed printer, Dunn is prepared to supply it and will argue with AOUSC later whether supply of the second tray is covered by the origi- nal contract. Id. 42. In the narrative of the proposal, Dunn referenced both the IBM 4039-16L plus as its fastest printer and the Lexmark Optra Lx as its fast speed printer. Protest File, Exhibit 8 at II-1-26 and 27. Furthermore, Dunn, in submitting its BAFO pricing, priced the Optra Lx printer and its associated UICs, but forgot to change the model number references in the B-Tables from Lexmark 4039-16L plus which it had offered in its initial propos- al, to the Optra Lx it offered in its BAFO. Transcript at 695- 97. Buy American Act certification 43. In its initial proposal, Dunn listed six items as excluded non-domestic products: the desktop chassis, tower chassis, 3 1/2 inch diskette drive, 5 1/4 inch diskette drive, serial mouse and internal and external CD-ROM drives. Protest File, Exhibit 55 at K-18. The items were not designated by CLIN. Id. 44. During oral negotiations, AOUSC advised all offerors that all non-domestic end items must be identified by CLIN, since without identification of which specific CLINs were non-domestic items, the contracting officer could not make cost adjustments necessary to determine cost reasonableness contemplated by the Federal Acquisition Regulation. See supra note 2. In its BAFO submission, Dunn submitted a revised Buy American Act certificate which stated "None" for excluded non-domestic products. Protest File, Exhibit 8 at K-18. 45. Dunn's president reviewed Dunn's Buy American certifica- tion and signed the proposals for this procurement. Transcript at 562. He also signed the cover letter for Dunn's BAFO. Id. at 575. Dunn's president testified at the hearing on the merits of this protest that he was unaware until after the filing of the protest that the Buy American Act certificate Dunn had submitted in its BAFO was not the same as the Buy American Act certificate in its initial proposal. Id. at 571, 581. There is a dispute of fact as to whether Dunn's submission of the erroneous Buy Ameri- can Act certificate at BAFO was knowing, reckless and intention- al. Having listened to the testimony of Dunn's president and evaluated his demeanor, we find as fact that the submission of the erroneous Buy American Act certificate was an honest mistake. 46. Dunn concedes that the following items in its proposal are excluded non-domestic items: the hard drives, the floppy diskette drives, the CD-ROM drives, and the fifteen inch moni- tor[foot #] 7. Protest File, Exhibits 56, 57 (Telos's Interrogatory 26 and Dunn's Answer.) 47. Another offeror, who had proposed IBM equipment, also submitted a certification which did not list excluded non-domes- tic end items. Transcript at 115. The contracting officer took both certifications at face value. Id. at 192. 48. Telos had submitted a Buy American Act certificate showing certain excluded non-domestic items; Telos's prices were therefore adjusted on a CLIN by CLIN basis. Transcript at 187. At the post-award debriefing, Telos questioned Dunn's Buy Ameri- can certification. Id. at 189-90. The contracting officer contacted Dunn's president and asked him to review the accuracy of the certification. Id. at 200, 581. Telos's proposal Slow speed printer 49. Originally, Telos offered the ******* **** ** * ***** ******** ***** ***** ******* as its slow speed printer. Protest File, Exhibit 9a at II-2-24 (T-10388). Dunn offered *** **** *******. Id., Exhibit 8 at II-1-26. AOUSC issued a deficiency report to vendors questioning whether the LED printer was a laser printer. Id., Exhibits 14, 52. As a result of the defi- ciency request Telos consulted with Lexmark; Lexmark advised Telos in a letter that LED printers had the same functionality as Laser printers. Intervenor's Exhibit 7. Lexmark wrote the letter in the hope that AOUSC would consider LED printers as compliant products. Transcript at 640. Nevertheless, Telos changed its proposal to offer the ***** *********** ****. Protest File, Exhibit 9a at II-2-24 (T-10613). Dunn did not substitute printers; it decided to persuade AOUSC, through its responses to the deficiency report, that the LED printers were compliant. Transcript at 951-52. 50. The technical evaluation team, after reviewing vendors' responses to deficiency reports, concluded that the print output from an LED printer was the same quality as a laser printer, and that the industry viewed the term "laser printer" as including LED printers. Protest File, Exhibit 52. The technical team ----------- FOOTNOTE BEGINS --------- [foot #] 7 The monitor is assembled in Mexico; the Buy American Act applies if AOUSC is not subject to the provisions of the North American Free Trade Agreement and its Buy American Act exemption. ----------- FOOTNOTE ENDS ----------- withdrew the deficiency reports but did not advise offerors specifically that the LED printer had been determined compliant; rather, AOUSC sent letters stating that all deficiencies had been resolved. Transcript at 214. 51. Telos's price for the ***** slow speed printer in year one was *******. Dunn's price for the Lexmark slow speed printer in year one was $686. Telos's price for the ***** slow speed printer in the option years was also less than Dunn's price for the Lexmark slow speed printer in the option years. Respondent's Hearing Exhibits 3, 4 (pricing for CLIN 0501C). Diskette drives 52. For diskette drives, Telos offered *** * *** **** ******** ***** ** ******** **** *** * *** **** ***** ********* ** * **** *********** ********** Transcript at 887. Technical response time 53. As to the technical assistance factor in the management area, Telos's original narrative proposal provided: *** **** ******* ******** ******** ********* * ******* **** ******* ** ************* ********* **** ********* ** *** ******* ********* *** ********* ********** ** *** ********** ***** * ****-**** *** ******* *** ******* **** **** ** ******* ** ********* ****** ***- ***** ********* ******** *** *********** ******** ****** ******* **** ********** ******* ******** ****- ********* ******* ***-******* *** ******* ******** *** ******** **** *** ******** ********** ******* ****- ****** ********** ************ *** ********** *** ******* ****-***** ************* *** ******* *****- ******* *** ******* **** **** ** ******* ****** *** ****** **** ** ** **** ** ******* ***** ****** ******* ******* ********* ******* ********* *** ********* ********* **** ** ********* ** ******* **** ********* ******* *** *********** **** ********* *** ******* **** **** ****** *** ******* ***** * ******** ** *********** *** ******* **** **** **** ****** ** *** **** ******** ******* *** ************ ********* ****** ***** ******* ********** *********** * ******** **** ** ******** ** * ******** ** ********** ** ****** ** * ******** **** ** ******** ** *** ****** ****** **** ***** ** ******* ** *** ******** Protest File, Exhibit 9a at T-10409. Telos's original proposal stated that: "Call response would be within **** *** ***** ****** and that a solution would be provided or schedule of activities to arrive at a solution will be provided ****** **** *****." Id. at T-10334. Telos clarified the **** ***** ****** confusion by stating in an updated proposal that response time would be *** ****** Id. at T-10589. 54. In the matrix for Warranty Support - Technical Assis- tance, Telos entered for "Response Time Per Call?" the following: ******-* ***** ******** ** ****** ****** * ***** Protest File, Exhibit 9a at T-10397. 55. ** *** ********* ******* **** ****** ** ********* **** *** ***** **** ** ***** ******* * ****** **** ** ******* ******** ******* ***** ******* * ** **-*-*** **-*-*** **** ******** **** *** *********** ** ********* ** **** ******* ********** ** ***- *** Respondent's technical and cost evaluation 56. The technical evaluators did not rely on the B-Tables in the proposal in conducting the technical evaluation. The evalua- tors relied solely on the content of the technical proposals. Transcript at 34-35, 107. For Dunn's proposal, both in round one and two, there was sufficient information in Dunn's proposal to enable the evaluators to evaluate the requirements of the items Dunn had proposed. Protest File, Exhibits 13, 21. 57. It was not necessary for the source selection evaluation board to later compare the items offered in the B-Tables with the technical proposal volume because in this RFP each CLIN was associated with a requirement in Section C, Transcript at 108-09, and sub CLINs were associated with minimum mandatory requirements and features to be evaluated as described in Section M. Protest File, Exhibit 5. Since the offerors were required to demonstrate in their technical proposals how each CLIN or sub CLIN met or exceeded requirements, matching of the technical proposal with the B-Tables was not necessary. Transcript at 108. 58. At the hearing on the merits of the protest, protester's expert, who criticized Dunn's allegedly sloppy use of model numbers, conceded that Dunn's technical proposal as it related to Section C was "responsive." Transcript at 275. 59. The technical team noted the following reduced benefits in Telos's proposal: ****** ******* ** * ** ******* *** ***** ******** ***** ******* ******* ***** *** *** ******* *** ****** *****- *** ******** **** **** **** ******** ******** ** * ***- **** Protest File, Exhibit 43 at 3. 60. The source selection advisory council (SSAC) considered nine offerors, with Dunn and Telos--the ****** *** ***** *** **** ********--ranked as follows: Offeror Technical Area Price Mgmt Area Dunn *************************************** Telos **************************************** Protest File, Exhibit 43 at 1. The SSAC identified the following reduced benefits in Telos's proposal regarding the technical area: ****** ******* ** **** ******** ** ******* *** ***** ******** ***** ******* ******* ***** *** ******* *** ****** ******** ******** **** * ***** ****** **** ******** ******** ** * *** ******* **** ******** ** ********** ******** *** **************** ***** ******** * ******* ** ***** Id. at 3. The SSAC identified enhanced benefits in Telos's proposal in the technical area: ********* **** ******* ******** ***** ***** ** ***** *** ** ***** ** ******** ******* * ****** ** ******* ** *** *** *** ********* ******* *** ***** ******** **** ***** **** **** *** *** **** ****** ******* ** *** ******** ******* *** ** * *** *** * ******* ******* *** *** ******** ******* *** 61. For the technical area, the SSAC identified enhanced and reduced benefits in Dunn's proposal as well. *** ******** ******** ******** *** *** ***** **** ******* ******* *** *** ******* *** ***** ******** *** **** ****** ******** **** **** *** **** *** * **** ***** **** Protest File, Exhibit 43 at 2. Reduced benefits included ** ********* ************* *** *******- ** ** ****** **** *** *** **** ***** ******* *** *** *** *** *** *** ******** ************* Id. 62. In the management area, the SSAC identified enhanced benefits in Dunn's proposal for *** **** ******** **** ** *****- *** ******** ****** ** ***** ** ******** **** ******** **** *** ******** ***** ** ********* ******** ** ********* ** ******* ****** ******** **** ** ** ******* **** ** ********* ********** *** ** *** ****** *********** *** *********** *** **** ******* **** *** *********** Protest File, Exhibit 43 at 4. The SSAC identified reduced benefits from Dunn's ******** *** ** ********- *** ***** *** *** ***** ***** Id. In the management area, Telos obtained enhanced benefits for *** *********** ** *** ******** ***** *** ******** ****** *** ***** ** ********* *** ********* *********** *** *** ******* ******** Telos earned reduced benefits in ******** ******* *** *** *** ** **** *** ******** **** *** ******** *** ** *********** ****** it also earned reduced benefits in ********* ********** *** **** **** ******** **** ** ** ******* ***** Id. 63. In the technical area, Telos earned a ***** for its slow speed printer and two ***** for its medium and fast speed print- ers. In contrast, Dunn received a green for its slow speed printer and two blues for its medium and fast speed printers. Compare Protest File, Exhibit 53 at 344 with id., Exhibit 39 at 1. 64. In the management area, Telos earned a ***** for warran- ty support, a ***** for technical assistance, a ***** for order- ing aids, and a ***** for performance and experience. Protest File, Exhibit 37. Telos received a ***** in the factor technical assistance because the evaluators interpreted the **** **** ******** **** proposed as the "initial call response time" with Telos's promise to ****** *** ***** ****** *** ***** interpreted as ****** ****** ** *** ************ Transcript at 795. As noted above, finding 60, Telos's total management area score was *****. 65. The SSAC recommended award to Dunn over the low cost offeror, because Dunn had more enhanced benefits and fewer reduced benefits in the technical area than that offeror and because Dunn received a higher management rating than that offeror. In comparing Dunn to Telos, the ***** *** **** offeror, the SSAC concluded: ******* ********* ******** **** ****** *** * * * **** ******** ****** **** ***** ***** ******** ******** ****** ** ********** ********* ** ********** *********- ** **** ******** *** **** ********* ***** ** **** * *- * *** ****** ***** **** **** ** *** ********** **** ******** *** ***** *** ****** *** ****** ** * ****** ** ***** ******** ****** ****** **** ** ********** ********* ** ********** ********* ** **** ********** **** ** ***** ** ***** ***** *** ** *** **** ******* ***** *** *** *********** Protest File, Exhibit 43 at 5. 66. The present-value price of Dunn's proposal, as adjusted to account for those items which Dunn now concedes are non- domestic, is $14,677,544.81, while Telos's price is ************- ***. Protest File, Exhibit 50 at 4; Respondent's Hearing Exhibit 4. Dunn's present value price without the adjustment was $14,- 561,021,93. Transcript at 858. Hands-on evaluation 67. Paragraph M.5 of the RFP provides in pertinent part: The Government reserves the right to conduct a "hands- on" evaluation of any proposed system of offered hard- ware and software . . . during the proposal evaluation. The Government will notify Offerors of its intention to do so. Protest File, Exhibit 5 at M-5. 68. After reviewing proposals, but before award, AOUSC asked Dunn to deliver a system for a hands-on evaluation at AOUSC's facilities. Transcript at 64-65. Dunn delivered the requested system to AOUSC, which tested the products. The evaluation was conducted on May 12, 1995. Protest File, Exhibit 50 at 5. 69. The protocol for the demonstration had twenty steps; most of the substantive steps involved connecting the system to the local area network (LAN): i.e., installing Novell network software, logging on to the LAN, and sending an E-mail message to the contracting officer. The other substantive steps involved running vendor provided Word Perfect for Windows software, printing a Word Perfect document from the "A:" drive, and instal- lation and removal of a UIC. Protest File, Exhibit 44. The remaining steps involved logging off of the LAN, removing the Novell netware from the system, disconnecting the system from the LAN, disconnecting the components from the CPU and repacking equipment. 70. The source selection authority (SSA) raised several questions to which the SSAC responded in writing. The SSA asked whether the apparent awardee's system had been tested by the technical team and whether the SSAC was confident that the system would interface with the Data Communications Network (DCN). The SSAC responded that Dunn's equipment was tested by installing the hardware and accessing the DCN. The SSAC reported that the team was pleased with the equipment. Protest File, Exhibit 47 at 3. AOUSC's summary of negotiations stated that "the purpose of the evaluation was to ensure compliance with mandatory requirements and to verify the offeror's technical proposal." Id., Exhibit 50 at 5. Discussion The applicable law Before reaching the specific issues raised in this protest, because of the unique status of the AOUSC, it is necessary to discuss what body of law applies to this procurement. AOUSC is within the Judicial branch of the Government. 28 U.S.C.A. 601 (West Supp. 1993). AOUSC, however, is a federal agency as defined by the Federal Property and Administrative Services Act, 40 U.S.C. 472(b) (1988); under the Brooks Automatic Data Processing Act, the Administrator of General Services is autho- rized to provide for the purchase of automatic data processing equipment (otherwise known as federal information processing resources) for federal agencies. 40 U.S.C.A. 759(a)(1) (West Supp. 1995). The Competition in Contracting Act (CICA) is applicable to agencies of the Executive branch, and thus does not apply to the AOUSC. 41 U.S.C. 252 (1988).[foot #] 8 The Federal Information Resources Management Regulations (FIRMR) issued by the Administrator of General Services, however, make the FAR applicable when federal agencies procure information processing resources under the Brooks Act. 41 CFR 201-39.102(b) (19- 94).[foot #] 9 AOUSC conducted this procurement under the Brooks Act, pursuant to a DPA issued by GSA. Finding 3. This acquisition is subject to the FAR. B-Table issues Telos argues that Dunn's proposal was non-compliant because Dunn failed to supply model numbers for all offered products, a failure which Telos maintains violated a material requirement of the RFP. Telos's Post-Hearing Brief at 3-4. Telos's reading of the RFP is erroneous. The RFP told offerors that the basis of the evaluation and source selection decision was the offeror's compliance with mandatory technical requirements as specified in Section C, and the factors specified in M.5 upon which the ranking of proposals would be based. Finding 17. It is true, as Telos argues, that Section L of the RFP required vendors to provide a response to the unit price tables, finding 16, but that instruction focused on price, an obvious material requirement for cost evaluation, rather than on model numbers. Id. As we have noted before, mandatory instructions for proposal preparation are very different from mandatory minimum criteria which offerors must meet in order to be eligible for award. Computer Data Systems, Inc. v. Department of Energy, GSBCA 12824-P, 95-2 BCA 27,604, at 137,569, 1995 BPD 69, at 75. Furthermore, the RFP made clear that the B-Tables were to be part of the cost propos- al, finding 16; the technical team evaluated the technical proposal and did not rely on the cost proposal. Finding 56. Telos's reliance on International Business Machines Corp., GSBCA 9293-P, 88-1 BCA 20,512, 1988 BPD 16, is inapposite. There, we found that a requirement for a serial number to identi- fy refurbished equipment was a minimum mandatory requirement of the RFP, because the serial number established the offeror's capability of delivering the item it had pledged to deliver. Id. at 103,701,1988 BPD 16, at 10. There is no similarity between a serial number and a model number, beyond the fact that the two are numbers. The serial number in the International Business Machines procurement identified a specific, individual item which ----------- FOOTNOTE BEGINS --------- [foot #] 8 41 U.S.C. 252(a) states, "Executive agencies shall make purchases and contracts for property and services in accordance with the provision of this subchapter. . . ." [foot #] 9 That provision states: "Notwithstanding the fact that the FAR is for the use of executive agencies in the acquisi- tion of supplies and services, Federal agencies not otherwise subject to the FAR shall use the FAR in conjunction with the FIRMR when acquiring FIP resources." ----------- FOOTNOTE ENDS ----------- an offeror had pledged to supply. Model numbers for the most part describe classes of products. For purposes of technical evaluation, the RFP made clear that for this procurement, in evaluating the functionality of the equipment offered, AOUSC would be relying not on model numbers to be stated in the cost proposal, but on the offerors' narrative and specification compliance sections of the technical proposal, in the format required by paragraph L.18.2.2.1, as checked against the specifi- cation matrix. Findings 14, 15. In fact, the technical evalua- tion team did not have access to or use model numbers in conduct- ing the technical evaluation. Finding 56.[foot #] 10 Telos argues that whether or not model numbers are viewed as a minimum mandatory requirement, AOUSC's selection of Dunn's proposal was improper because "Dunn failed to sufficiently identify its offered products to enable AOUSC to know what it was evaluating for award purposes and what it will be receiving under the contract." Protester's Post-Hearing Brief at 14. We dis- agree. Dunn specifically and unmistakably identified the four computer systems it offered to supply the system CLINs. Finding 32. Dunn did make four mistakes in identifying other CLINs, arising from its failure to change model numbers in its BAFO when it changed equipment from that offered in its initial proposal. These mistakes involved model numbers in B-Tables for the fast and medium speed printers, the seventeen inch monitors and the NIC. Finding 33.[foot #] 11 There was also a typo- graphical error in the model designation of the SCSI2 controller. Id. All of these items, however, were adequately described in the narrative portion of the proposal. Findings 31, 33, 41. The mistaken identification of model numbers can be corrected after award under FAR 14.406-4(a),[foot #] 12 made applica- ble to negotiated procurements such as this one by FAR 15.1005. There may arise a case in which a contractor's technical proposal is so vague that, despite the procuring agency's evalua- tion and subsequent award, we could hold that, on an objective basis, the proposal was incapable of evaluation. This is not ----------- FOOTNOTE BEGINS --------- [foot #] 10 Telos is not pure on this issue, as it too had discrepancies between the model numbers in its B-Tables and its technical narrative. Finding 35. [foot #] 11 Other alleged mistakes, such as alleged mis- identification of hard-drives, stem from the fact that Dunn uses its own numbering system and does not use model numbers of its suppliers. Finding 32. [foot #] 12 That provision allows correction of mistake by contract amendment after award when correction would be favorable to the Government without changing the essential requirements of the specification. ----------- FOOTNOTE ENDS ----------- such a case. Dunn provided ample information to enable the AOUSC evaluation team to evaluate its proposal. Findings 31, 56. User installable components Telos argues that Dunn failed to identify five UICs anywhere in its proposal to enable the respondent to know what it is getting. Telos argues that the RFP stated in Paragraph M.5A.(a) that respondent would evaluate all UICs and system upgrades offered and that "this UIC evaluation was explicitly separate from the evaluation of the four offered systems." Protester's Post-Hearing Brief at 17. It further argues that the provision must be applied to all integrated and non-integrated UICs because there is no limiting language. Id. at 18. Telos states that AOUSC simply failed to evaluate the UICs. This is a hyper- technical reading of the RFP. The statement about evaluation of UICs appears in the system factor of the technical area; thus the meaning is clear--when AOUSC evaluates systems, it will also evaluate the UICs and upgrades proposed for the system. There is no language in the RFP stating there was to be a separate evalua- tion for UICs. The UICs were to be evaluated with the systems as integrated components. Finding 20. Technical acceptability of fast speed printer One of the minimum mandatory requirements for the fast speed printers was that the printer not have "less than 1000 page paper tray support." Finding 21. Telos argues, in effect, that the minimum mandatory requirement was for the successful vendor to supply a fast speed printer which had a 1,000 page paper capacity at delivery. Protester's Post-Hearing Brief at 36. Again, we disagree. The requirement was written in terms of the capability of the printer offered, not the capacity of the printer at delivery. Finding 21.[foot #] 13 The term "support" in automatic data processing procurements has become something of a term of art, and does not necessarily mean "provide." Thus in Andersen Consulting v. United States, 959 F.2d 929, 934 (Fed. Cir. 1992), the Court upheld this Board's construction of "sup- port" (for communications protocols) as meaning "work with" as well as "provide." In Laptops Falls Church, Inc. v. Department of Justice, GSBCA 12953-P, 95-1 BCA 27,311, at 136,124, 1994 BPD 261, at 17, appeal docketed, No. 95-1227 (Fed. Cir. April 3, 1995), we construed a printer requirement to "support" an autorange adapter as meaning a printer that could be used in conjunction with the adapter. Similarly, here we construe the ----------- FOOTNOTE BEGINS --------- [foot #] 13 Telos's complaint about Dunn's practice is ironic; Telos used the same practice in complying with the minimum requirement for the number of floppy diskette drives. The RFP stated that a system offering one disk drive would be viewed as non-compliant. Finding 21. Telos offered *** **** ***** *** *** ******** ****** **** *** ****** **** ***** ******* ** ** ******** ******** Finding 52. ----------- FOOTNOTE ENDS ----------- mandatory requirement to mean that offerors were to supply a fast speed printer capable of automatically handling 1,000 sheets of paper. Telos maintains that AOUSC's issuance of deficiency reports on the 1,000 page requirement belies its litigation posture that only capability was required. Protester's Post-Hearing Brief at 40. Telos argues that AOUSC must have known about tray linking before it issued its deficiency report because technical litera- ture in Telos's initial proposals described tray linking. Telos maintains that the unstated but real reason for the deficiency report was AOUSC's concern about the delivered printer's capaci- ty, not capability. Id. We have found as fact, however, that AOUSC issued the deficiency report because it was ignorant of tray linking. Finding 38. It is understandable that a technical evaluation team could have missed this detail in its initial evaluation when it was evaluating voluminous proposals against numerous requirements. Once the offerors explained the concept of tray linking in response to deficiency reports, AOUSC was satisfied. Finding 39. Buy American Act certification Unlike Telos, we see no fraudulent or deceptive conduct, relating to Dunn's mistaken BAFO Buy American Act certification, which would require Dunn's elimination from the competition. The discrepancy between Dunn's initial Buy American Act certification (which listed six items, finding 43, and its BAFO certification (which listed "none"), finding 44, is too glaring to be anything but a careless mistake. We have found as fact that the content of Dunn's second Buy American Act certification was an honest mistake. Finding 45. The Comptroller General has held that it was proper for an agency to accept a low bid after the bid was corrected to show delivery of a foreign end product, when the bid remained low after a proper re-evaluation in accordance with Buy American Act; consequently, other bidders were not prejudiced. 58 Comp. Gen. 142 (1968). Of course, if the Buy American Act re-evaluation would have resulted in a different ranking of bidders, that would call for a granting of the protest. See, e.g., Rocky Mountain Trading Co., GSBCA 10894-P, 91-1 BCA 23,619, at 118,357, 1990 BPD 430, at 8. The Court in Andersen Consulting cautioned that in these protests "the board must consider the significance of errors in procurement[s] when deciding whether to grant a protest because overturning awards on de minimis errors wastes resources and time, and is needlessly disruptive of procurement activities and governmental programs and operations." 959 F.2d at 932. Here, the contracting officer's re-evaluation resulted in an upward adjustment in Dunn's evaluated present value price to $14,- 829,943.36, an increase in Dunn's price of $268,921.53. Finding 66. Dunn remains the lower-price offeror, and there is no evidence in the record that the selection decision would have changed as a result of the contracting officer's upward adjust- ment. There is no basis for granting the protest based on this claim of error. Slow speed printer Both respondent and Dunn argue no violation of statute and regulation occurred as a result of AOUSC's failure to advise vendors that it considered LED printers to be laser printers. They argue that Telos and Dunn made competitive business deci- sions as to which printers to offer after receiving the deficien- cy reports. See Respondent's Post-Hearing Brief at 38; Inter- venor's Post-Hearing Brief at 28. The matter is not so casually dismissed. The FAR requires the contracting officer to issue solicitation amendments when, after receipt of proposals, the Government relaxes or modifies its requirements. FAR 15.606(a). Arguably, AOUSC in issuing the deficiency reports for the slow speed printer, finding 49, interpreted the requirement for a "laser" printer as a design specification. Continuing the argument, when AOUSC accepted the notion that a "laser" printer included an LED printer, finding 50, it relaxed the requirement by changing the requirement to a functional specification, and violated the FAR by not issuing an amendment. Nevertheless, a finding of a violation is not the end of the inquiry. Telos must show prejudice resulting from the violation. Andersen Consulting, 959 F.2d at 933; U.S. Sprint Communication Co. v. Department of Defense, GSBCA 11769-P, 93-1 BCA 25,255, at 125,815, 1992 BPD 165, at 24. Here, Telos was not disadvan- taged. Believing that AOUSC would persist in considering an LED printer unacceptable, Telos switched from the ******* to the ***** printer. This actually improved its price position because the ***** printer is cheaper. Finding 51. Second, even if Telos had bid the Lexmark printer, there has been no demonstration that the technical evaluation or the selection decision would have been different. The evidence is to the contrary. The slow speed printer was one third of a factor, which itself, since all factors were equal, represented but one- twelfth of the total technical evaluation. Finding 19. Telos's technical proposal was scored *****, as was Dunn's. Finding 60. Telos has not established that the technical evaluation of its proposal or the source selection decision would have been differ- ent had Telos bid the Lexmark slow speed printer. While Telos received a ***************** for the ***** slow speed printer it offered, Dunn also received a ***************** for the Lexmark slow speed printer that Dunn offered and that Telos maintained it could have offered. Findings 60, 61. In terms of a comparison of benefits conferred by Dunn's and Telos's proposals, therefore, Telos's position would not have improved as against Dunn had Telos offered the Lexmark slow speed printer. Management evaluation-technical support factor-initial call response Telos argues that AOUSC's evaluation of initial call re- sponse was erroneous--that its promise to ****** *** ***** ** *** ***** should be scored the same as ****** ******* ** ******* ** ******* **** ******** ** ******* *******. Protester's Post- Hearing Brief at 54. The management evaluation was correct and will not be disturbed. In its specification matrix, Telos stated *******-* ******** ******** ** ****** ****** * ******* Finding 54. The meaning is clear--Telos's technicians take the initial call and within four hours provide a response. Nothing in the subsequent narrative could reasonably lead the evaluators to conclude that * ******** ***** ** ******** ** *** ****** The phrase "Once informed, the support desk will pursue the problem until a solution is identified," finding 53, does not suggest that a response to the initial call would be provided ****** *** ****** The last sentence, ** ******** **** ** ******** ** * ******** ** ********** ** ****** ** * ******** **** ** ******** ** *** ****** ****** **** ***** ** ******* ** *** ********* id., suggests the contrary--i.e., that a response would be provided ****** **** ****** Alleged unstated evaluation factors Telos argues that AOUSC set *** ***** as the minimally acceptable response time, *** ** as the minimally acceptable amount of cache memory, and * * *** ***** * *** **** *** ***** diskette drives in the computer systems as minimally acceptable configurations. Protester's Post-Hearing Brief at 55. Telos cites to FAR 15.605(e), which requires agencies to state clearly the evaluation factors and any significant subfactors that will be considered in making the source selection decision. Id. This argument overstates the case. AOUSC did not make those features or service levels minimally acceptable requirements; the minimally acceptable requirements were stated in the RFP. Finding 21. Rather, AOUSC used a scoring methodology which established benchmarks for features or services, with vendors earning "enhanced benefits" (and higher color scores) for fea- tures and services above the benchmark and "reduced benefits" (and lower color scores) for features and services below the benchmarks. Finding 28. Here, AOUSC provided in Section M of the RFP that it would evaluate "initial call response," "minimum cache offered," and "each system's diskette drives and controllers offered for number and type." Findings 21, 22. Consistent with the requirements of the FAR, the significant factors and subfactors were stated in the RFP. The RFP, instead of stating design requirements origi- nally contemplated by the ITD in the FRD, finding 2, left it to vendors to craft functional solutions, meeting basic minimum mandatory requirements. Findings 21-24. Telos's real complaint is that AOUSC did not advise vendors what configuration of microcomputer would earn a better than average score. A similar scoring scheme involving AOUSC was upheld in Lexis-Nexis, B-260023, 1995 WL 341842 (May 22, 1995). There, as here, AOUSC developed a checklist of desirable features whose scoring methodology was not listed in the RFP. The General Accounting Office held: These checklists provide the evaluators with guidance as to how certain features and data base packages should be evaluated. As such, they constitute an evaluation methodology for the additional/enhanced data bases, functions, and features subfactor, not unstated evaluation factors. Agencies are not required to inform offerors of their specific rating methodology. Rather, in appropriate circumstances, agencies may establish evaluation standards to provide evaluators with guidelines as to the quality of proposals in certain evaluation areas. The fact that certain pack- ages of features have been identified by the agency as desirable does not require that they be disclosed to offerors, for the reasons discussed above. In any case, the guidelines clearly constitute internal agency evaluation plans; the propriety of an evaluation turns not on these plans, but on whether the evaluation ultimately is carried out in accordance with the stated evaluation criteria. Id. at 4 (citations omitted). In Lexis-Nexis, AOUSC in its RFP did encourage offerors to propose advanced services which exceed the requirements reflected in the solicitation. Id. We cannot find such a statement in the OAR RFP. The OAR RFP, however, advised offerors that the technical area was the most important, although the cost area was significant. Finding 18. It is thus evident that AOUSC was interested in technically advanced propos- als. Telos knew this; it secured enhanced benefits in the technical score by proposing such ******** ******** ** ***** ***** *** *********** ******** **** ** **** *** *** **** ****** ******* *** *** ******** ******* Finding 60. Telos's complaint that the AOUSC used "unexpressed evaluation factors" in evaluat- ing proposals is erroneous. Hands-on evaluation Telos argues that the hands-on evaluation was illegal post- BAFO discussion. Telos is wrong. The RFP advised vendors that there could be a hands-on evaluation. Finding 67. AOUSC con- ducted the evaluation of Dunn's system to determine system compatibility and acceptability. Findings 69, 70. AOUSC did not conduct further discussions. Id. Decision The protest is DENIED. The suspension of respondent's delegation of procurement authority lapses by its terms. ________________________________ ANTHONY S. BORWICK Board Judge We concur: _____________________________ _________________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge